The expression “tooth and nail” is from Sir Thomas More‘s 1535 fictional book titled In A Dialogue of Comfort and Tribulation. Moore writes the phrase “that they will fight tooth and nail” when describing people who fear death and will fight to the end.
Most of the Republican party has spent decades fighting “tooth and nail” to ban reproductive rights, and via a recently leaked draft ruling on Dobbs v. Jackson Women’s Health Organization, we now know the GOP is poised to succeed.
The leak as the latest Republican “shiny object”
But few Republican lawmakers are celebrating the disclosure of this draft Supreme Court opinion that would overturn Roe v. Wade.
Instead, Republicans are angrily demanding answers to how the document became public in the first place.
While the leak is unusual, it’s worth pausing to appreciate a couple of truths:
- First, Justice Samuel Alito’s draft wasn’t sensitive national security information, and its leak probably isn't going to be prosecuted.
- Second, reasonable observers can agree that much of the GOP’s response is faux outrage.
- Part of this was fueled by Republicans’ eagerness to play the role of victim (snowflake)— they’re assuming, without proof, that the leak came from the left.
In fact, it’s quite possible we’ll learn that the leak came from the right.
GOP leaders would much rather talk about a shiny object — questions about a leak — than the demise of Roe and the loss of women’s rights, the LGBTQ+ rights, and contraception rights.
Senate Minority Leader Mitch McConnell told reporters during a weird Capitol Hill press conference, “You need a lecture to concentrate on the news ... Not a leaked draft, but the fact that the draft was leaked.”
The dog that caught the car
To Republicans, the looming loss of a constitutional right just isn’t that important. What’s important to them is the blowback from the loss.
A half-century of fighting has brought Republicans to the precipice of a major victory, and the entire party appears overcome — not with joy, but with unease.
A widely-accepted premise has been the war against abortion rights was never meant to be won, it was simply meant to be fought. The post-policy Republican Party is fueled less by substance and more by grievances and power.
I’ve always thought that the abortion issue was the “golden goose” of Republican politics.
They’re using the courts to advance policies that are wildly unpopular
Nobody should be fooled: The reason right-wingers are suddenly fans of propriety again is because so much of their political agenda requires using this activist Supreme Court to advance policy far too unpopular for the democratic process.
So the big question has become: Why are Republicans so worried about norms suddenly? The Trump years were devoid of norms. There was a race to undo norms at every level.
Says Steve Benen, author of The Impostors: How Republicans Quit Governing and Seized American Politics:
“Norms didn't matter when Republicans in 2016 blocked President Barack Obama’s Supreme Court nominee, Merrick Garland. Norms didn’t matter when Republicans went ‘nuclear’ and altered the filibuster to confirm Neil Gorsuch to the Supreme Court the next year. Norms didn’t matter when Republicans used the filibuster during the Obama presidency more than it had ever been used in history, ushering Washington into a new era of bad-faith governance. And norms were systematically obliterated during the impeachment-defined President Donald Trump era on everything from international diplomacy to the rejection of a peaceful transfer of power.”
The reason that the idea of a sacred Supreme Court matters so much to the GOP is because it is central to its strategy for change: Republicans desperately rely on institutions that operate outside of or counter to the principle of democratically elected majority rule.
- The Electoral College system isn’t based on the popular vote — and George W. Bush’s victory in 2000 and Trump in 2016 was ensured by an undemocratic Electoral College.
- Republicans also rely heavily on a legislative body that structurally over-represents the rural and conservative part of the population — the Senate — to act as a bulwark against Democratic legislation.
- And they deploy the counter-majoritarian filibuster rule to thwart the Democrats even when Democrats manage to win a majority in a body that structurally favors the right.
The Supreme Court is a premier part of Republican’s antidemocratic toolkit. As an institution that faces no accountability from the electorate [Autocracy 101], and as a branch of government that Republicans have arranged in their favor, it’s a powerful vehicle for defending the right-wing agenda and laying waste to progressive reform.
As New York Magazine’s Eric Levitz noted about the Republican right’s attentiveness to federal courts, much of the right-wing agenda is widely unpopular, and working through the courts allows conservatives to circumvent the consequences of realizing its goals.
“In some respects, the conservative movement’s obsession with the courts is a testament to its weakness,” Levitz has argued. “There is no popular majority for banning abortion, scaling back the welfare state, or eroding basic labor and consumer protections in the United States — and judging by the millennial and Zoomer generations’ political views, there never will be. The right has responded to this reality by rapidly stocking the judiciary with as many lifetime 40-something-year-old reactionaries as it can find.”
Today, abortion rights remain broadly popular, and overturning Roe v. Wade remains deeply unpopular. But as Jay Willis, editor of Balls and Strikes, has said, “Republicans are banking on ‘the myth of an apolitical judiciary’ to help them weather the backlash that will accompany an assault on abortion rights.
“The Supreme Court is the last branch of government where the right can cloak its agenda in the idea of rights and technocracy that transcend vulgar everyday politics.”
Willis continues, “The court derives so much of its legitimacy by handing down its opinions like Moses descending from Mount Sinai. I think people would be well-served to learn more about what goes on inside this black box, and to understand that the justices are just like any other politicians they see on TV.”
And the midterms?
Democrats who were privately hoping for a surprise development to shake up the midterms have gotten their wish. Nobody expected it to come in the form of a leaked draft Supreme Court opinion overturning Roe v. Wade.
(Don’t get too excited: Democrats have a history of “blowing” these opportunities.)
But “the more you see Republicans cheering the decision, the more you’re going to have voters saying, ‘Wait a second, this is not what I thought they were going to do,’” said Margie Omero, a Democratic pollster.
“We hold that Roe and Casey [ruling that states cannot prohibit most abortions] must be overruled,” Justice Alito wrote in the draft. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Omero pointed to an April 26 polling arguing that a Supreme Court ruling along these lines “would motivate Democrats and pro-choice Americans significantly more to turn out in 2022 than Republicans and those who are pro-life – to lay bare the differences between the parties,” she said.
And the fallout from this ruling
“There’s no doubt the battle goes to the state level,” said Bob Vander Plaats, a Christian conservative leader, who added that “the next focus for the anti-abortion movement would be pushing across the country for laws on fetal cardiac activity.”
Ever since oral arguments in the Dobbs v. Jackson case against abortion rights, anyone paying attention knew the U.S. Supreme Court was poised to gut the landmark Roe v. Wade decision ensuring Americans access to abortion as a constitutional right.
“The leaked draft opinion penned by Justice Samuel Alito isn’t just a blow to Roe; it's ‘a maximalist assault on progressive constitutionalism’ that opens the floodgates to any rights Americans now enjoy that aren’t explicitly enumerated in the U.S. Constitution,” concludes Omero.
As Slate's Mark Stern writes, Alito’s “more emphatic denunciation of Roe’s logic is that abortion rights are not firmly entrenched in tradition or a part of the Constitution’s original meaning. The draft ruling calls into question other unenumerated rights the Supreme Court has conferred on Americans, such as the right to privacy, raise children, use contraception, or marry the person of their choosing regardless of the color of their skin or their gender.”
Toppling Roe is just the beginning of a series of previous Supreme Court rulings in the crosshairs of the right-wing majority.
Justice Alito went out of his way to harshly dismiss both Obergefell [license for same sex marriage] and the Lawrence v. Texas ruling, which established the right of same-sex couples to be intimate (i.e., privacy) without government interference.
It doesn't take a genius to see where right-wing conservative Republicans are heading.
This fight will be fought wildly with both sides utilizing all resources and energy available – “Tooth and Nail.”
Written by John James Alexander, a long-time Kentucky educator.
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